Tuesday, February 21, 2012

7:04 PM

Attorneys indicated late Tuesday legislative leaders were interested in changing the redistricting maps they drew to address several issues raised in a suit challenging the new lines, but indicated the lawmakers believe they cannot because of a 100-year-old court ruling.

A federal judge also again chided Republican lawmakers for what he said was a continued effort to hide the redistricting process from the public and fight the lawsuit with questionable tactics.

Dan Kelly, a lawyer representing the state, and Maria Lazar, an assistant attorney general, said they had contacted legislative leaders about Judge J.P. Stadtmueller’s earlier request to change the maps to account for concerns over minority representation and some 300,000 voters who would go six years between voting for their state senators.

"Legislative leaders are interested," Kelly told the court. "But there is an impediment."

Kelly cited a 1910 case decided by the Wisconsin Supreme Court that he said means that the Legislature can only enact a redistricting plan once every 10 years. Since the recent plan was enacted last summer, the Legislature can't redo it, Kelly argued.

Lawyer Doug Poland, a lawyer for some plaintiffs challenging the maps, countered that since the Legislature is still in the same session they could still take them up.

A trial over the constitutionality of the maps was slated to begin Tuesday, but Stadtmueller delayed the start by asking all sides involved to come up with a deal on their own to address the concerns raised in the suit. After huddling all day, lawyers met again at 5 p.m. with no deal.

Stadtmueller also learned at the early evening session that attorneys supporting the redistricting plan dumped another batch of emails on attorneys for the other side, prompting Stadtmueller to once again criticize the process used in creating the plan.

His comments came after Peter Earle, a lawyer for one of the plaintiffs, said his office had been given a number of emails on Friday that the court had not even received. Those emails were not yet publicly available.

The three-judge court "has had enough charade and mischaracterization," Stadtmueller said. He added that "the facts are the facts" and that what has occurred was "beyond the pale."

"Wisconsin has prided itself with openness and transparency ... we have seen everything but that," Stadtmueller said.

The three-judge panel has several times criticized lawyers representing the GOP lawmakers who crafted the maps for trying to keep testimony and documents related to the process off-limits to the other side by claiming attorney-client privilege. At one point, the judges were so enraged that the GOP lawyers continued to make the same argument despite losing several times that the attorneys were personally sanctioned by the court.

On another issue before the court, Stadtmueller said that James Troupis, a lawyer involved in drawing up the plan, would have to be deposed by lawyers for the other side. He had been fighting being questioned under oath, saying he had immunity because of the attorney-client relationship.

The court ordered that lawyers for both sides brief that by Wednesday morning and noted that the trial may not continue Wednesday if the deposition goes forward. While Troupis may not have to answer all the questions, he will be deposed, Stadtmueller said.

Because of the likely deposition of Troupis by lawyers for the plaintiffs, the trial may not proceed on Wednesday. However, lawyers will be in court for a ruling on some of the issues raised Tuesday.

If the trial cannot be completed this week, Stadtmueller said it may have to be adjourned until March 12 or 19.

Stadtmueller also told the lawyers for both sides to prepare memos on the question of whether the three-judge panel has the authority to rule on the state constitutionality question.

"I believe, at least for the moment, that the court has the authority to interpret state law," Stadtmueller said.